Lawmakers work to pass wiretap carve out for evidence of abuse

Date: 3/29/2023

Cellphones are ubiquitous and with cameras all around, there are fewer places that people may have an expectation of privacy. However, secretly recording people is a crime in Massachusetts. Now, legislators are working to address the unintended consequence of a law created to protect people from being photographed or recorded without their consent.

A friend of Springfield resident Nancy Domenichelli found herself in just such a predicament after using her cell phone to surreptitiously record her significant other, allegedly to obtain evidence of threatening and abusive behavior. Domenichelli said that the friend was successful in using the recording to obtain a restraining order but has since been charged with violating Massachusetts’ wiretap law. Domenichelli asked that the individuals involved in the case not be named in the interest of privacy.

Chapter 272, Section 99 of Massachusetts General Laws states, “unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth,” and prohibits actions through which people can “secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication.”

Domenichelli said, “This law allows the perpetrator to continue the cycle of abuse by using the law. It’s an archaic law that doesn’t belong in the books anymore in the age of social media. You have this technology to protect you,” she said of cell phones. While she acknowledged people have a reasonable expectation of privacy, she said, “if that is allowed to enable a crime, we have gross misjustice.”

In fall 2022, Domenichelli learned that state Sen. Patrick O’Connor (R-Weymouth) had introduced a bill addressing the issue during the last legislative session, but it died in committee. He reintroduced the bill, “An Act providing a defense to prosecution for violations of the wiretap law for interceptions made to make a record of threats, harassment or other crimes,” in this legislative session.

“When I called the sponsor of this proposed bill, Sen. O’Connor, his staff member was very helpful and responsive. He suggested I contact my state representative as well, which I did. Angelo Puppolo (D-Springfield) acted quickly after being informed of the issue.”

Puppolo is co-sponsoring the bill. He said the legislation would create a “limited carve out” in the state’s wiretap law. As a lawyer, Puppolo said he believes in protecting people from unknowingly being recorded but said the language in the bill is narrow enough that it should only affect people who are seeking evidence of domestic violence, which Puppolo called a “very important public safety issue.”

When it comes to legislation, Puppolo said circumstances can “evolve.” He said, “Situations come up and they have to be dealt with.” As an example, Puppolo cited a case in 2010 in which a person was taking photos around the skirts of riders on the subway in Boston. The individual was apprehended but the state law on “peeping Toms” was not applicable because technology had advanced beyond the prohibited activities. In 2014, a new law prohibiting “upskirting” was created to address this loophole.

“A phone call to a local representative immediately turned into action, it makes me feel good about our local government,” Domenichelli said. “I am impressed with the fact that two legislators from different parties and opposite sides of the commonwealth are working together to help victims of domestic violence,” she said. Adding that legislators “heeding the request of their constituents … really warms my heart.”

Domenichelli is not leaving the passage of this legislation up to chance. She said she plans to contact all voting members of the Legislature to encourage approval. “When you get a local politician involved, you can effect change at the state level.”

Puppolo cautioned patience and said the legislature is designed to work methodically. He also noted between 5,000 and 6,000 bills are filed each year and it takes time to work through them. The act has been given bill number S.1093 and has gone to the Joint Committee on the Judiciary.